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PETITION TO: UNITED NATIONS WORKING GROUP on ARBITRARY DETENTION Chairman/Rapporteur: Mr. José Guevara Bermúdez (Mexico) Vice

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PETITION TO: UNITED NATIONS WORKING GROUP on ARBITRARY DETENTION Chairman/Rapporteur: Mr. José Guevara Bermúdez (Mexico) Vice PETITION TO: UNITED NATIONS WORKING GROUP ON ARBITRARY DETENTION Chairman/Rapporteur: Mr. José Guevara Bermúdez (Mexico) Vice-Chair on communications: Ms. Leigh Toomey (Australia) Vice-Chair on follow-up: Ms. Elina Steinerte (Latvia) Mr. Seong-Phil Hong (Republic of Korea) Mr. Sètondji Adjovi (Benin) HUMAN RIGHTS COUNCIL UNITED NATIONS GENERAL ASSEMBLY In the Matter of Ho Van Hai Citizen of the Socialist Republic of Vietnam v. Government of the Socialist Republic of Vietnam Submitted By: Maran Turner Steven J. Kolias Karl Horberg Eve Wright Freedom Now Lisa Borthwick 1750 K Street NW, 7th Floor Ananya Mitra Washington, DC 20006 David H. Kistenbroker United States of America Hrishikesh Hari +1 (202) 223-3733 (tel) Dechert LLP +1 (202) 223-1006 (fax) 2929 Arch Street [email protected] Philadelphia, PA 19104-2808 United States of America +1 (215) 994-2352 (tel) [email protected] [email protected] October 29, 2019 QUESTIONNAIRE TO BE COMPLETED BY PERSONS ALLEGING ARBITRARY ARREST OR DETENTION I. IDENTITY 1. Family Name: Ho 2. First Name: Van Hai 3. Sex: Male 4. Age at the Time of Detention: 52 5. Nationality: Socialist Republic of Vietnam / granted permanent residency in United States for 10 years a. Identity document (if any): Unknown b. Issued by: c. On (date): d. No.: 6. Profession and/or activity (if believed to be relevant to the arrest/detention): Doctor / blogger on certain social media forums 7. Address of usual residence: Unknown II. ARREST 1. Date of arrest: November 2, 2016 2. Place of arrest (as detailed as possible): Dr. Ho was arrested at the clinic he established where he was working as a doctor. The clinic is called Asia Polyclinic and is located in P. Linh Tay Ward, Thu Duc District. 3. Forces who carried out the arrest or are believed to have carried it out: The Ho Chi Minh City Police. 4. Did they show a warrant or other decision by a public authority? Unknown 5. Authority who issued the warrant or decision: Unknown 6. Relevant legislation applied (if known): Dr. Ho was charged and convicted for “conducting propaganda against the Socialist Republic of Vietnam” under Article 88 of Vietnam’s 1999 Penal Code.1 1 On January 1, 2018, an amended penal code came into effect. Article 88 is now codified as Article 117 of the amended penal code. Because Dr. Ho was arrested and convicted under the older penal code, unless otherwise noted, all references are to the 1999 penal code. III. DETENTION 1. Date of detention: Dr. Ho was detained on November 2, 2016 and is still in detention as of the date of this petition. 2. Duration of detention (if not known, probable duration): Dr. Ho has been held in detention since November 2, 2016. On February 1, 2018, Dr. Ho was sentenced to four years in prison to be followed by two years house arrest. 3. Forces holding the detainee under custody: Unknown 4. Places of detention (indicate any transfer and present place of detention): Dr. Ho was initially held in Phan Dang Luu detention center until December 2017 when he was transferred to Chi Hoa prison. 5. Authorities that ordered the detention: Ho Chi Minh City Police. 6. Reasons for the detention imputed by the authorities: The detention is for Dr. Ho’s conviction under Article 88 of 1999 Penal Code by the People’s Court of Ho Chi Minh City. 7. Relevant legislation applied (if known): The relevant legislation for the conviction was Article 88 of 1999 Penal Code, “conducting propaganda against the state.” IV. DESCRIBE THE CIRCUMSTANCES OF THE ARREST AND/OR THE DETENTION AND INDICATE PRECISE REASONS WHY YOU CONSIDER THE ARREST OR DETENTION TO BE ARBITRARY A. STATEMENT OF FACTS Part 1 of this section describes the Socialist Republic of Vietnam (“Vietnam” or “Government”) and its history of suppressing and violating the fundamental rights of its citizens, particularly the right to speak freely in dissent of the governing party. The Communist Party of Vietnam (“CPV”) also has shown a propensity for using the criminal code to arbitrarily detain journalists and others who speak out against its regime.2 Part 2 of this section presents the case of Dr. Ho Van Hai, a blogger in Vietnam who was wrongfully detained on November 2, 2016 and subsequently wrongfully convicted in February 2018 of conducting propaganda against the state. Dr. Ho was sentenced to four years in prison, followed by two years of house arrest. 1. Background on Vietnam a. Political, Legal, and Social Background on Vietnam Vietnam has been an authoritarian, one-party state since the CPV came into power in the 1970s. Despite being bound by several human rights treaties, including the International Covenant on Civil and Political Rights (the “ICCPR”), the Government routinely violates its citizens’ most basic human rights, including freedom of speech, opinion, assembly, press, religion, and association, in particular by detaining individuals who speak against the interests of the Government and the CPV party.3 2 See generally HUMAN RIGHTS WATCH, Vietnam: End Attacks on Activists and Bloggers - Pattern of Thuggish Assaults Against Rights Campaigners Across Country (June 18, 2017), https://www.hrw.org/news/2017/06/18/vietnam-end-attacks-activists-and-bloggers. 3 See HUMAN RIGHTS WATCH, Vietnam - Human Rights In A Season Of Transition: Law and Dissent in the Socialist Republic of Vietnam (August 1995), https://www.hrw.org/reports/1995/Vietnam2.htm (hereinafter “HRW 1995 Report”). 2 b. The Government’s Interference with Freedom of Expression Vietnam has significantly limited its citizens’ freedom of expression through legal restrictions, harassment and the detention of activists, journalists and bloggers. In its 2018 World Press Freedom Index, Reporters without Borders ranked Vietnam 175 out of 180 countries, and reported that, because the Government controls all of the mainstream media in the country, bloggers and citizen-journalists are the only source of independent information.4 In the past decade, the Government passed several laws and ordinances that restrict both personal and media freedom of expression.5 In addition, a number of provisions in Vietnam’s penal code are worded vaguely enough to be interpreted as criminalizing expression that the Government deems offensive, such as “carrying out activities aimed at overthrowing the people’s administration,”6 “undermining the unity policy,”7 “conducting propaganda against the state,”8 “disrupting security,”9 or “abusing democratic freedoms to infringe upon the interests of the state.”10 The Government has used these laws to increasingly detain its critics, by, for example, arresting media activists repeatedly and handing them multi-year prison sentences as Government reprisal for their critical reporting. c. Lack of Due Process Protections in Vietnam Even though the Vietnamese Constitution guarantees to criminal defendants a presumption of innocence, a timely, fair and public trial, the right to representation by a lawyer and the right to present a defense against the charges, these protections are not available to defendants in practice.11 Prisoners are systematically subjected to lengthy pre-trial detention and frequently held incommunicado before their trials, denied visits from family or attorneys, while being at risk of torture.12 Detainees are often denied access to counsel through bureaucratic delays despite constitutional guarantees, while trials are frequently held in secret, sometimes lasting only a few hours.13 4 REPORTERS WITHOUT BORDERS, Vietnam Country Report, https://rsf.org/en/vietnam (hereinafter “RWB Vietnam Report”). 5 For example, The Law on the Press, which went into effect in 2017, dictates that the press should “propagandize and disseminate, and contribute to the protection of, the line and policies of the Party…and build and promote socialist democracy, strengthen the great national unity bloc, and build and protect the socialist Fatherland of Vietnam.” Law on the Press, No. 103/2016/QH13, art. 1 (2016), available at http://www.wipo.int/wipolex/en/text.jsp?file_id=447052. 6 Criminal Code (1999), No. 15/1999/QH10, art 79, December 21, 1999, available at http://www.wipo.int/wipolex/en/text.jsp?file_id=385615. This provision was included in the amended criminal code (2015) at art. 109. Criminal Code (2015), No. 100/2015/QH13, arts. 373-74, November 27, 2015, available at: http://www.wipo.int/edocs/lexdocs/laws/en/vn/vn086en.pdf. 7 Criminal Code (1999), supra note 6, at art. 87. This provision was included in the amended Criminal Code (2015), supra note 6, at art. 116). 8 Criminal Code (1999), supra note 6, at art. 88. This provision was included in the amended Criminal Code (2015), supra note 6, at art. 117. 9 Criminal Code (1999), supra note 6, at art. 89. This provision was included in the amended Criminal Code (2015), supra note 6, at art. 118. 10 Criminal Code (1999), supra note 6, at art. 258. This provision was included in the amended Criminal Code (2015), supra note 6, at art. 331. 11 THE CONSTITUTION OF THE SOCIALIST REPUBLIC OF VIETNAM, 2013, Art. 31, translation available at International Institute for Democracy and Electoral Assistance, http://www.constitutionnet.org/sites/default/files/tranlation_of_vietnams_new_constitution_enuk_2.pdf; see also HRW 1995 Report, supra note 3. 12 See generally UN Working Group on Arbitrary Detention, Opinion No. 75/2017 UN Doc. A/HRC/WGAD/2017/75 (2017); see also United States Department of State, Bureau of Democracy, Human Rights and Labor, Vietnam 2017 Human Rights Report, 18, available at https://www.justice.gov/eoir/page/file/1057101/download (hereinafter “State Department 2017 Report”); UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH COMM’R, “UN rights experts condemn Viet Nam for incommunicado detention of blogger ‘Mother Mushroom’” (March 8, 2017), available at https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=21318&LangID=E.
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